Saturday, 5 December 2009

In a recent 79-page decision, a Manhattan judge could well have stopped after the first four sentences of his concluding paragraph and still conveyed his main point: that Fernando Bermudez was no longer guilty of murder.

Instead, the judge, Justice John Cataldo of State Supreme Court in Manhattan, tacked on a fifth sentence that ended with two powerful words: “actual innocence.”

By going further than merely finding that the murder conviction was wrongfully obtained — and by ruling unequivocally that Mr. Bermudez, of Washington Heights, did not commit the crime he had spent the past 18 years in prison for — Justice Cataldo injected hope into a movement.

To the layperson, the distinction might seem nuanced, if not trivial. But to advocates for the wrongfully convicted, Justice Cataldo’s decision, which was released Nov. 12, clawed toward what they viewed as a groundbreaking push to get New York State courts to focus more on the content of evidence, rather than procedural roadblocks.

“The Bermudez case, this dramatizes the need to ensure that actual innocence is established as a legitimate ground for a hearing,” State Senator Eric T. Schneiderman, a Manhattan Democrat, said.

Mr. Schneiderman is one of the sponsors of a bill introduced in the Senate last month that would add a provision to state law allowing judges to overlook procedural errors in a defendant’s case and overturn a conviction when the evidence before them “conclusively establishes” innocence.

State law generally allows wrongful-conviction appeals on two grounds. Either new evidence would have to have been discovered, or a defendant’s constitutional rights would have to have been violated at trial. The problem, experts say, is that these claims are shrouded in hefty procedural rules.

In a claim of newly discovered evidence, for instance, the defendant must show, among other things, that the evidence could not have been found during the trial. If a judge rules that it could have, then the judge can uphold the conviction, regardless of how compelling the evidence is.

An “actual innocence” statute, experts said, would give judges the leeway to excuse procedural violations, missed deadlines and other mistakes if the evidence is strong enough.

“It elevates substance over form,” said Glenn A. Garber, a Manhattan defense lawyer and founder of the Exoneration Initiative, an organization that focuses on innocence claims that lack DNA evidence. “If they know they’re required to engage in actual innocence analysis, it sends a message to courts that they have to do more when they’re confronted with compelling evidence of innocence.”

Opponents of the actual innocence doctrine, however, have stressed the importance of finality in the justice system and fear that these statutes could lead to myriad frivolous claims by desperate prisoners.

The statute would not apply to cases in which there is DNA evidence, as those are governed by their own laws, experts said. But most cases lack DNA evidence.

One of Mr. Garber’s cases could be the next litmus test for actual innocence claims in New York. On Monday, his client, William McCaffrey, is scheduled to appear in State Supreme Court in Manhattan on a claim that he is not guilty of the rape for which he has been imprisoned for the past four years. In addition to appeals based on DNA and newly discovered evidence, Mr. McCaffrey’s petition also includes an actual innocence claim.

Advocates of the actual innocence doctrine have been riding a swell of momentum over the past several months.

In July, a State Supreme Court justice in Brooklyn ruled that Jonathan Wheeler-Whichard was innocent of a murder he had been convicted of in 1996, and experts said they believed it was the first time a judge in the state had overturned a conviction based on an actual innocence petition.

In August, the United States Supreme Court made the rare move of ordering a federal trial court in Georgia to consider the case of Troy Davis, who is on death row in state prison for the 1989 murder of an off-duty police officer. Mr. Davis made a direct habeas corpus appeal to the Supreme Court on actual innocence grounds. Federal courts have been especially skeptical of actual innocence claims and do not recognize them as a ground for overturning a conviction.

“This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent,” Justice Antonin Scalia wrote in his dissent to the Davis decision.

Although no New York appellate court has ever recognized actual innocence as a ground for an appeal, the judges in the Bermudez and Wheeler-Whichard cases spelled out what they believed it meant in their decisions.

“I am now prepared to rule that, at least under the circumstances of this case, such a claim of actual innocence may be brought and the standard of proof for determining it is ‘by clear and convincing evidence,’ ” Justice Joseph K. McKay of State Supreme Court in Brooklyn wrote in deciding the Wheeler-Whichard case.

In Mr. Bermudez’s case, Justice Cataldo found that there was newly discovered evidence as well as a constitutional violation that led him to overturn the conviction.

But Justice Cataldo did not stop at those findings.

“I find the due process clause of our state Constitution requires a procedural mechanism be provided for an incarcerated defendant to bring a post-conviction motion upon a claim of actual innocence,” the judge wrote.

And so he ruled that the new evidence established that Mr. Bermudez was innocent, a step that experts said was important because it prevented the prosecution — short of a reversal by an appellate court — from retrying him. It also helped Mr. Bermudez’s chances of collecting money from the state.

Mr. Bermudez had been petitioning since 1994 for a state court to grant him a hearing to consider the evidence of his innocence, according to Lesley Risinger, one of his lawyers. But procedural roadblocks prevented him from getting a hearing until this year.

As he left Sing Sing prison on Friday, Mr. Bermudez said he was hoping his release would stand for something more.

“This is a day,” he said, “for other people to have hope that justice is possible in this country.”